Allowed

Musst. Basiran Nesa v. the Union of India and 7 Ors.

Gauhati HC11 Nov 2022WP(C)/6172/2022

Case brief

AI extract

What is this about?

This petition challenged an ex-parte order declaring the petitioner a foreigner after she failed to appear at tribunal hearings due to the COVID-19 pandemic. The High Court allowed the petition, set aside the impugned order, set bail conditions, and granted the petitioner one month to appear before the Tribunal.

What did the court decide?

Set aside the ex-parte order declaring petitioner a foreigner; directed petitioner to appear before the Foreigners Tribunal within one month; granted bail with conditions.

Musst. Basiran Nesa Vs the Union of India and 7 Ors. — Writ and Judicial Review | Gauhati HC (2022)

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GAHC010191292022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6172/2022

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MUSST. BASIRAN NESA D/O-LATE KALIMUDDIN, W/O- MD. ABDUL KARIM, R/O VILLAGE MALANGA, P.S- SALBARI, DIST- BAKSA ( BTAD), ASSAM

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VERSUS

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THE UNION OF INDIA AND 7 ORS

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REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SASTRI BHAWAN, NEW DELHI- 110001.

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2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6

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3:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001

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4:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S ROAD. BHANGAGARH GUWAHATI-05, DIST- KAMRUP (M)

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5:THE FOREIGNERS TRIBUNAL BAKSA TAMULPUR DIST- BAKSA ASSAM, PIN-781367 6:THE DEPUTY COMMISSIONER BAKSA P.O- TAMULPUR DIST- BAKSA ASSAM, PIN-781367 7:THE SUPERINTENDENT OF POLICE (B) BAKSA P.O- TAMULPUR DIST- BAKSA ASSAM, PIN-781367 8:THE OFFICER IN CHARGE OF SALBARI POLICE STATION P.O- SALBARI DIST- BAKSA ASSAM, PIN-78131

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Advocate for the Petitioner : MS. D GHOSH

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE HON’BLE MR. JUSTICE N. KOTISWAR SINGH

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HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

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:: O R D E R ::

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11.11.2022

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[N. Kotiswar Singh, J]

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Heard Ms. H. Betala, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Ms. A. Verma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2, 5, 7 & 8; Mr. A.I. Ali, learned Standing Counsel, ECI for respondent No.3; Ms. U. Das, learned

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Additional Senior Government Advocate, Assam for respondent No.6 and Ms. L. Devi also appears for respondent No.4 as the learned Standing Counsel, NRC.

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The present petition has been filed challenging the impugned ex-parte order dated 07.03.2022 passed by the learned Foreigners Tribunal, Baksa in F.T. Case No.30/BAKSA/2019 [S.P. Ref. Case No.283/2009] by which the petitioner was declared to be a foreigner of post 1971 stream on her failure to appear before the learned Tribunal after filing her written statement.

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It has been submitted by the learned counsel for the petitioner that it is not the case that the petitioner was negligent in pursuing the proceeding before the learned Tribunal but because of her inability to appear before the Tribunal on account of Covid pandemic and also due to the financial constraints, the matter was unfortunately proceeded ex-parte. Accordingly, it has been submitted that the petitioner may be afforded another opportunity to appear before the learned Tribunal to prove that she is an Indian and not a foreigner.

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We have also gone through the impugned order dated 07.03.2022 passed by the learned Tribunal.

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In para 2 of the impugned order, it is mentioned that the petitioner indeed had appeared before the Tribunal on receipt of notice.

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The petitioner had filed her written statement but thereafter, she remained absent on 18.01.2022, 08.02.2022, 18.02.2022 & 28.02.2022 and accordingly, the matter was proceeded ex-parte against the petitioner vide order dated 07.03.2022.

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It is the case of the petitioner that at the relevant time, Covid-19 pandemic had started which resulted in serious disruption in the movement of the populace which also affected her appearance before the Tribunal.

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We have noted the submission made by Ms. A. Verma, learned State Counsel that the petitioner was given adequate opportunity by the Tribunal.

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Considering the fact that the petitioner had already appeared before the Tribunal and filed her written statement and was willing to pursue the proceeding but she could not appear before the Tribunal on account of Covid-19 pandemic, we deem it appropriate that the

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petitioner may be given another opportunity to appear before the Tribunal to prove her case that she is an Indian and not a foreigner.

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Under the circumstances, though we have noted that the petitioner was given adequate opportunity but because of the Covid-19 pandemic situation she could not appear before the Tribunal, we allow this petition by setting aside the impugned ex-parte order dated 07.03.2022 passed by the learned Foreigners Tribunal, Baksa in F.T. Case No.30/BAKSA/2019 and direct the petitioner to appear before the learned Foreigners Tribunal, Baksa within a period of 1(one) month from the date of receipt of a certified copy of this order.

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Learned counsel for the petitioner submits that the petitioner wishes to file additional documents. It is for the petitioner to do so by making necessary application which shall be considered by the learned Tribunal in accordance with law.

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Since the citizenship status of the petitioner has come under cloud, the petitioner will appear before the Superintendent of Police (Border), Baksa and furnish a bail bond of Rs.5,000/- with one local surety to the satisfaction of the Superintendent of Police (Border), Baksa whereafter the petitioner shall be allowed to remain on bail during the pendency of the proceeding before the learned Tribunal. The concerned Superintendent of Police (Border) may obtain necessary information and documentation as required under the rules from the petitioner for securing her presence and also shall take steps for capturing the finger prints and biometrics of the iris of the petitioner, if so advised.

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The petitioner shall not leave the jurisdiction of Baksa District without giving details of the place of destination and her place of stay to the Superintendent of Police (Border), Baksa. 11. With the above observation and direction, the present petition stands allowed.

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JUDGE JUDGE

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Comparing Assistant

Musst. Basiran Nesa v. the Union of India and 7 Ors.

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Musst. Basiran Nesa v. the Union of India and 7 Ors.

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